Search:

Custom Search
Photo of Susan Smith

Court Sends Case Back to MSPB For Penalty Review

By Susan Smith

Thursday, March 13, 2008

You can have daily headlines from FedSmith.com delivered right to your desktop each business morning. The service is free and you don't get junk e-mail as the price of your subscription. Just visit our newsletter page to sign up!

Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

In a case challenging the demotion of an EAS-17 customer services supervisor to a part-time entry-level position, the court of appeals has handed the Postal Service and the Merit Systems Protection Board a setback. (Texeira v. United States Postal Service, C.A.F.C. No. 2007-3171 (nonprecedential), 2/28/08)

Texeira, a 19-year postal employee with no prior misconduct, worked at the Modesto Main Post Office where she supervised clerks and served as the finance supervisor. She incorrectly posted 160 hours of annual leave for an employee who had not earned the leave and later ended up reimbursing the agency for the leave pay. The agency proposed to remove Texeira, charging her with "Unacceptable Conduct: Falsification in Recording Time/Failure to Follow Proper Timekeeping Procedures." (Opinion pp. 1-2)

The final agency decision sustained the charge but mitigated the penalty to a demotion to a part-time job at a smaller postal facility. (p. 3)

On appeal to the MSPB, the Administrative Judge determined that the charge was in fact two charges—falsification and failure to follow procedures—and found that the agency had proved the lesser charge, but not the falsification charge. However, the AJ sustained the penalty. (pp. 3-4)

The appeals court has now affirmed the part of the Board's decision sustaining the failure to follow procedure charge. However, the court apparently choked on the Board's refusal to mitigate the penalty. As the court stated, "The record demonstrates a decisionmaker imposing a severe penalty because he believed the agency had proved Texeira guilty of purposeful falsification, not just the failure to make a correct entry of vacation time. The agency has not yet articulated what less severe sentence should be imposed when it proved only a much less severe charge." (p. 7)

In short, the appeals court has ordered the case back to the MSPB for reconsideration of the penalty on the lesser charge only. (p. 8)

© 2009 FedSmith Inc. All rights reserved. This article may not be reproduced without express written consent of FedSmith Inc.

Add a Comment about this Article

** All fields are required.
Note: Your comments will not show up right away. FedSmith.com selects the most insightful comments from our readers for posting. If selected, your comments will show up in the comments section after they have been reviewed and approved. See our terms of use for more information.

Readers' Comments

  • Somebodies not happy with this employee and wants a pound of flesh. If each federal employee paid this kind of penalty for a document mistake, there wouldn't be anybody willing to work for the government. What a waste of taxpayer money and resources....
    Posted: March 17, 2008 9:41 AM
  • Could the supervisor have simply erred by a decimal place? Did the employee, (who had to know they weren't entitled to that leave balance,) face any penalty for using that leave? Or was he/she just required to pay it back? A lot is missing from this tale....
    Posted: March 13, 2008 2:46 PM
  • I'm sorry I must have misread that article. I thought it said "A 19 year worker, with NO misconduct made a mistake." The money was reimbursed by the employee therefore nothing was lost. By reading this 6 paragraph article you have determined that this employee isn't trustworthy and should be fire...
    Posted: March 13, 2008 2:02 PM

View All Comments »

MORE BY SUSAN SMITH

Contact Susan Smith or read more articles on the author's page.